Question: If within my SEO campaign, I build backlinks to my pages with a competitor’s trademark terms in the anchor text, can this constitute an infringement?

Well you would think so, considering you are publishing these trademark terms for commercial benefit (presumably) but it’s not quite that simple.

Lets say you target a term on which you were not aware a trademark existed? Once you have built these backlinks, you cant just go out there and remove them. And since these backlinks are hosted on third party sites, is the owner of this site then responsible for the infringement?

If you had an SEO company build the links, are they the liable party, or are you?

And if you are still liable, despite being unable to remove these backlinks, alter the anchor text or not even having ownership of the sites on which these terms are published, doesn’t this open the door for a new kind of commercial warfare?

Consider this situation: I build backlinks to my competitor with a trademark term in the anchor text… simple enough, and it sounds crazy, doing SEO for your competitor…

Is there any way to prove who did or didn’t build these backlinks?

Is my competitor liable for trademark infringement?

Have I just wrapped my competitor up in massive and potentially irresolvable legal issues?

Mookid comments on this SEOMoz post:“I work for an IP company at the moment and one thing I would point out is that Trademark’s are only registered in specified jurisdictions – it isn’t possible to obtain “global trademark protection” so in this sense the internet will never be a place for trademark protection.”

Another good point – the deregulated nature of the web makes this an even more difficult issue. Can a post on U.S. website twitter.com infringe on a U.K. trademark by linking to a U.K. website? What about a U.S. based squidoo.com “lens” which infringes a U.K. trademark and then links to a U.K. website? I would strongly argue this is outside jurisdictions.

That’s right – by “deep” linking to a media file on another website, according to this U.S. judge, you have committed a crime.

I take great issue with this particular judgement and the precedent it sets. Without duplication, there has been no “copy” – regardless of if (in this particular case) the link-er was claiming the link-ee’s content, as his own.

If it is technically possible to limit this kind of deep linking (hot linking) which IT IS, then it should remain the technical responsibility of the host to manage how visitors access that content.

Another relevant case was between Ticket Master and Tickets.com, and this one in particular bemuses me with its stupidity. You can read about the case here, but the basic gist is…

If tickets.com couldn’t supply the items the customer wanted to buy, they would link them to the Ticket Master sales page… and Ticket Master were complaining about this… going so far as to state that “no deep linking to the site is permitted.”

First of all, what moronic drugs are these supposed business people on? Another company is passing on all of its hard won customers for free, and Ticket Master have a problem with that?

The issue stems from the placement of Ticket Master’s terms and conditions, and that Tickets.com was essentially bypassing these T&C’s by linking directly to the sales page for the required product. But again, it is within the technical obligations of Ticket Master to limit access within its site based on Ticket Master’s requirements. Will Ticket Master next sue google for returning a “deep link” product listing in search results?

And while we are on copyright, what about using trademark terms in Meta Tags? Obviously trademark terms can’t be visibly used to sell products, and as such more often than not, they can’t be contained in any meta tag which is commonly visible, but personally I feel tags such as the Meta Keywords tag is an exception since this is never visible to the person browsing and the website therefore does not unreasonably confuse the customer. Further, the use of a trademark term in the meta keywords tag may be entirely legitimate as it is a related or relevant term, especially in industries where trademarks become colloquial terms for products.

But the ridicule ensues… in that the judge didn’t see the malarkey in the claim, which led BlockShopper to settle in order to avoid massive legal fees.

Subnet_rx on SEOMoz made this comment on the deep linking to media copyright issue, which I believe is highly relevant to all of the above:

“To me it shows the real flaws within the system when a judge can make a ruling on something he has very little idea about. To be honest, there should be an internet equivalent of the ACLU to help argue these cases to make sure that these decisions are made with all the information and effects of a ruling on the table.”